United States District Court, N.D. Iowa, Western Division
ORDER GRANTING MOTION FOR PRETRIAL DETENTION
LEONARD T. STRAND, Magistrate Judge.
This case is before me on a motion by plaintiff (the Government) for pretrial detention. I conducted a detention hearing on March 3, 2014. Assistant United States Attorney Jamie Bowers appeared for the Government. Defendant Yoirlan Tome Rojas appeared personally and with his attorney, Assistant Federal Public Defender Bradley Hansen. The Government presented testimony from Special Agent Michael Hawkins with the United States Secret Service. The Government also offered the following exhibits, which were received into evidence without objection:
Government Exhibit 1: Front of four credit cards issued to Tome Rojas Government Exhibits 2-6: Photographs of video surveillance at a Wal-Mart store Government Exhibit 7: Demonstrative photograph of an MSR606 device that can be used to re-encode the magnetic strip on credit cards
Defendant did not present any testimony or proffer. I also considered the information contained in the pretrial services report. The motion is fully submitted.
I. Applicable Standards
A request to detain a defendant pending trial triggers a two-step inquiry. United States v. Friedman, 837 F.2d 48, 49 (2d Cir. 1988). As a threshold matter, the Government must show by a preponderance of the evidence that the case involves an offense listed in 18 U.S.C. § 3142(f)(1), or that the defendant presents certain risk factors, as identified in § 3142(f)(2). Id. Pretrial detention is not authorized unless at least one of seven enumerated circumstances is applicable. 18 U.S.C. § 3142(f). The first five circumstances refer to "offense types, " such as crimes of violence, offenses punishable by life imprisonment, serious drug offenses, felonies committed by repeat offenders, and felonies involving minor victims or guns. 18 U.S.C. § 3142(f)(1)(A-E). The last two circumstances involve "risk factors, " such as a serious risk of flight, or a serious risk the defendant will obstruct justice. 18 U.S.C. § 3142(f)(2)(A-B).
If the Government makes this threshold showing, then I must determine, pursuant to Section 3142(e), whether any condition or combination of conditions will reasonably assure the defendant's appearance at trial and the safety of the community. Id. The Government has the burden of (a) showing by clear and convincing evidence that no condition or combination of conditions imposed on the defendant would reasonably assure the safety of the community if he or she were released or (b) showing by a preponderance of the evidence that no condition or combination of conditions imposed on defendant would reasonably assure the defendant's appearance if he or she were released. A defendant may be detained on the basis of a showing of either dangerousness or risk of flight; it is not necessary to show both. United States v. Apker, 964 F.2d 742, 743 (8th Cir. 1992) (per curiam); United States v. Sazenski, 806 F.2d 846, 848 (8th Cir. 1986) (per curiam).
In determining whether there are conditions of release that will reasonably assure the appearance of the defendant as required and the safety of any other person and the community, I must consider the factors outlined in 18 U.S.C. § 3142(g), including (1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a firearm; (2) the weight of the evidence against the defendant; (3) the defendant's history and characteristics; and (4) the nature and seriousness of the danger to any person or to the community that would be posed by the defendant's release. I must then determine whether any of the conditions under 18 U.S.C. § 3142(c) can reasonably assure the appearance of the defendant and the safety of the community. 18 U.S.C. § 3142(e); United States v. Orta, 760 F.2d 887, 891 (8th Cir. 1985) (en banc).
A. Does The Government Have The Right To Seek Detention?
As noted above, the Government cannot seek pretrial detention in any case unless the case involves an offense listed in 18 U.S.C. § 3142(f)(1), or the defendant presents certain risk factors, as identified in Section 3142(f)(2). Here, the charges against Tome Rojas do not fall within the offenses listed under 18 U.S.C. § 3142(f)(1). However, the Government argues, and I find, that this case involves a serious risk that Tome Rojas will flee. Thus, the Government is entitled to seek detention pursuant to 18 U.S.C. § 3142(f)(2)(A). Tome Rojas did not argue ...